And now Judge Alsup notices that Google's lead attorney, Robert Van Nest, is not in the courtroom. LaRoe tweets:

Alsup notices Van Nest is missing. In Chicago, the youngin partner reports. "Tell him we got along fine without him" -- Alsup

Well, he would say that, in that it was the judge who refused to believe that Van Nest's scheduling conflicts would make any difference. Van Nest had requested that the trial be put off enough to accommodate that issue. He also had a long-planned vacation with his extended family in May, but Oracle opposed the continuance, and the judge listened to Oracle.

So then Van Nest asked for a one-week continuance, to try to get the other conflicting trials rescheduled.
Nope, said the judge. The judge was in a hurry and so was Oracle. And now we wait and wait and wait, while the jury struggles to decide if Google infringed a patent the USPTO has preliminarily ruled is invalid. Of course, Google earlier
asked that the trial await a final determination on that '104 patent, and here was its reasoning:

Given the multiple final rejections by the PTO, a patent trial in its present form will require the Court, a jury, and dozens of witnesses to devote significant time and resources for little purpose. The only asserted patent to survive the reexamination process to date is the ‘520 patent; however, Oracle has attributed to this patent the least value of any of the seven patents originally asserted. (See Exhibit 18a to Iain Cockburn’s Third Damages Report (ascribing to the ‘520 patent a 0.3% apportionment percentage).) The ‘104 patent is the only other patent without a final rejection, but it currently stands rejected and a response from Oracle is due on April 16, 2012. Even if the jury was to conclude that the ‘104 patent is valid, Oracle has admittedly failed to mark with respect to that patent, which expires on December 12, 2012, so the potential damages period is relatively narrow and the propriety of an injunction questionable. Furthermore, any amendment to the asserted claims in the re-examination will eliminate past damages, leaving little to no remaining damages period given the impending expiration date. Finally, while Oracle may attempt to prolong the reexamination proceedings through lengthy appeals to the Board of Patent Appeals and the Federal Circuit, it is unlikely to overcome the examiners’ rejections. Proceeding to trial on these patents therefore would be a waste of jury, judicial and party resources.

In view of the foregoing, and presuming Oracle is intent on pursuing patent claims that stand finally rejected in reexamination, Google proposes that the trial proceed no sooner than the fall. This plan is consistent with the Court’s suggestion at the December 21, 2011 pre-trial conference. It would also allow time for the single remaining non-final reexamination proceeding on the ‘104 patent to proceed to a final rejection, an amendment of the claims (thereby eliminating past damages and giving rise to intervening rights), or a confirmation of patentability.

Nope. No can do, said the judge. Google also suggested the parties agree to a bench trial instead of a jury trial. No. Oracle wanted a jury. And here we are.

Not having your lead attorney there can make a difference, though. He's the one with the complete thread of everything in his head and at his fingertips. It certainly can make a difference.

So Oracle got what it wanted -- a chance to get a ruling by a jury that there was infringement, prior to a final determination of the validity of this sad sack patent. But here's the irony: if the final determination of the USPTO is that the patent is invalid, nothing the jury does matters. Any damages will be moot, wiped off the slate. Even if they find infringement, given the marking problem Oracle has with both the '520 and the '104 patent -- the parties have
stipulated already regarding the '520 patent that Oracle will only be able to claim damages from the date it gave notice of the infringement claim to Google, i.e., 2010 -- and given that the '104 patent expires in December, which pretty much wipes out any hope of an Oracle injunction on the '104 patent, what in the world is this incredibly expensive circus for?

Now, judges have broad discretion. And this is an excellent judge with a very good record, so this isn't criticism of him. Plus I respect judges' decisions, as a matter of principle. But I do suspect that Judge Alsup thought, prior to the trial's evidence making things more clear (as in the value, or not, of that ridiculously misused Tim Lindholm email), that Google was playing games, when in fact everything it pointed out as a potential problem turned out to be one, in real life. No, to spot game playing, methinks the judge needs to turn his gaze in a different direction.

Update: There is, LaRoe has just tweeted, another note from the jury, and LaRoe says on the first question, the judge sided with Oracle:

Q: If we find a reference that identifies data by numeric memory location, does its existence preclude existence of a symbolic reference?

Again the lawyers can't agree. Oracle, unbelievably,
contends that the "existence of numeric ref doesn't preclude symbolic ref". OMG. Google says it can't be both simultaneously. The judge says since they can't agree, he'll answer the jury's question himself. Wow. His answer:

Judge explains for any given "location" it can't be both numeric & symbolic reference. it's got to be one or the other.

Which is what Google said, except he seems to have a bit of an attitude toward Google today ... well, I don't know what that's about. We're relying on tweets. But according to the tweets, he heard Google say what he just said, after complaining that the lawyers couldn't agree, so he'd do it on his own, and then said what Google said.

Maybe he's as stressed out as we are at this point. Let's give him the benefit of the doubt, at least until we get the official transcript down the road. But some things are demonstrably true or not true, no matter who says them. You can look them up in a book. By that I mean, if Oracle says the Sun rises in the West and Google says it's in the East, you don't get annoyed that they can't agree. You note who got it right. And stick to what it verifiably true. No? Too simple?

So the judge may be having similar thoughts. He
asks the lawyers again if they'd like 5 minutes each to explain the tech to the jury. This time Oracle says yes and Google says no. See what I mean about it mattering if your lead attorney isn't in the room? The last time the judge asked them that, Van Nest was there, and he said yes immediately. Oracle said no. Now, it's the reverse.

Update 3: And it's a wrap for the day. The jury will try again tomorrow.

Update 4:
The judge on May 30th issued a
denial [PDF] of Oracle's motion for judgment of law on their patent claims, and in the text of the ruling, he tells us what the question about symbolic versus numeric was precisely and exactly how he answered:

Additionally, the jury asked a question regarding the meaning of symbolic reference during their deliberations. The jury asked whether a reference can be both a numeric reference and a symbolic reference. Over Oracle’s objections, the Court answered:

You look at whatever is in that little box and you say, does that identify data by a name other than the numeric memory location of the data? If the answer
to that is that it identifies a numeric memory location of the data, then it is not a symbolic
reference; it's a numeric reference. And it doesn't get transmogrified into a something else on account
of what happens downstream.

But you do have to consider what happens downstream to find — to at least figure out whether
or not the item that is in that box is referring to the numeric memory location of the data. You’ve got to look at least that far downstream in order to see
what it’s referring to. But, once you do that — and if you decide it’s a symbolic reference, great. If you decide it’s a numeric reference, that’s great, too. But it doesn’t then change because the computer marches on to one instruction after the other, and so forth.

(Tr. 4325–26). To sum up, the Court answered that a reference cannot be a “symbolic reference” for one datum and a “numeric reference” for another datum within the meaning of the claim language.

This answer was appropriate and already inherent in the claim construction. Cordis Corp., 658 F.3d at 1356. Based the patent specifications, a reference cannot be both a “symbolic reference” and a “numeric reference” within the meaning of the claims. The patent expressly stated that a reference was either a “symbolic reference or a numeric reference” (col. 2). The patent described two different subroutines that were invoked, depending on whether the reference was numeric or symbolic. There was nothing in the patent describing how to first determine whether a reference was numeric or symbolic with regard to any particular datum. The only reasonable understanding of the patent was that a reference would be recognized by an interpreter as either numeric or symbolic but not both. This understanding was inherent in the Court’s claim construction order, which stated that “[t]he ’104 patent teaches two different types of data references: numeric references and symbolic references” (Dkt. No. 137 at 20).

Furthermore, the testimony at trial of Oracle’s own expert, Dr. John Mitchell, supports this mutually exclusive characterization of a reference as either a numeric or symbolic reference. In his opening expert report, Dr. Mitchell labeled the indexes in the Dalvik bytecode instructions as “numeric references.” Realizing that this could be problematic to Oracle’s infringement contentions, in his trial testimony, Dr. Mitchell testified that his report was mistaken and that those indexes were instead symbolic references (see, e.g., Tr. 3490). This 180-degree change of opinion proves the mutually exclusive characterization of a reference (within the meaning of the patent claims): if a reference could be both a numeric and a symbolic reference, then Dr. Mitchell would not have needed to repudiate his expert report at trial and instead could have supplemented his report by testifying that the indexes were both numeric and symbolic references....

The foregoing is sufficient but it is worth adding that Oracle’s infringement case was presented through Dr. Mitchell. A reasonable jury could have found his many “mistakes” in his report merely to be convenient alterations to fix truthful admissions earlier made before he realized the import of his admissions. For this reason, a reasonable jury could have rejected every word of his testimony.

Don't you love it? The witnesses didn't know that the judge is a programmer, so while we were in agonized disbelief at some of the ridiculous testimony, the judge was quietly forming his own opinions.